UPC constitutional case should be admissible, says German complainant
The German attorney who filed a constitutional complaint against the legitimacy of the Unified Patent Court (UPC) has said that it would be surprising if his complaint was judged inadmissible.
In 2017, the German Constitutional Court (Bundesverfassungsgericht, BVerfG) said it is delaying Germany’s ratification of the UPC Agreement due to a complaint filed by Düsseldorf-based attorney Ingve Stjerna.
As reported by WIPR in February this year, the BVerfG said it will hear the complaint.
It is not clear whether the court, which is expected to issue a ruling before the end of the year, will decide whether to consider the complaint or will make a final judgment on it.
Stjerna’s complaint focuses on the democratic accountability of the regulatory powers overseeing the UPC’s operation and the independence of the judiciary. In addition, Stjerna argued that the UPC breaches existing EU law.
On Thursday, October 18, Stjerna published an article called “ The European Patent Reform—Questions and Answers on the German Constitutional Complaint Proceedings” in which he addressed speculation that the complaint could already be inadmissible.
According to Stjerna, this view has been promoted by supporters of the UPC.
In January this year, the German Bar Association claimed that the constitutional complaint is in part inadmissible and entirely unfounded.
“Inadmissibility would at least be surprising,” said Stjerna.
He said that the court’s request to the Federal President to suspend Germany’s ratification procedure in view of the case might already suggest that the complaint is admissible.
“Otherwise it might be easier to desist from such intervention and reject the complaint directly,” explained Stjerna.
“For if issuing a provisional order against another state power is to be avoided already when the respective legal requirements are fulfilled, then this must be the case all the more if these requirements—eg, as a result of an inadmissibility of the constitutional complaint—are lacking. Anything else would be questionable with regard to the principle of the separation of powers.”
Stjerna added that the fact that people are able to submit comments regarding his complaint is further evidence that it is not inadmissible.
He cited BVerfG statistics that said only 150 out of 5,784 constitutional complaints were served in 2017, equating to about 2.6%. “It would thus be surprising if the court made this effort, usually only applied in a tiny number of cases, to subsequently reject the complaint as inadmissible,” he said.
Even if the complaint is dismissed by a decision on the merits, Stjerna said, there are other areas of the constitution that may be invoked in seeking a ruling that the UPC is unconstitutional. The present complaint alleges violations of the rights in article 38 (1) (1) of Germany’s constitution, which covers elections to the Bundestag (parliament).
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories like this sent straight to your inbox.
